Daily Archives: July 10, 2018

Today was the 150th anniversary of the adoption of the 14th Amendment, that is something to celebrate because the amendment corrected one of the most glaring omissions from the Constitution that put it at odds with the very principles of the Declaration that “all men are created equal.” The amendment struck down the Dred Scott decision which denied that Blacks could ever be citizens and had no constitutional rights. Section One of the amendment stated:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It was the amendment which extended the promise of the Declaration first to Blacks and that would later be the basis of subsequent amendments and court decisions which extended those rights and that promise to other racial minorities as well as women and Gays. In that sense it is the amendment helped all Americans have a constitutional basis to have a chance to realize the revolutionary idea of the Declaration that “all men are created equal…”

Tonight President Trump nominated Federal Appeals Judge Brett Kavanaugh to the Supreme Court vacancy left by the resignation of Justice Anthony Kennedy. Since Kavanaugh was suggested as a favorite in the President’s nomination process I have taken the time to read a number of short biographical articles from a number of sources on Kavanaugh’s life, read a number of his legal opinions, decisions and an article on the Separation of Powers and Executive powers in a 2009 Article in the Minnesota Law Review. All that being said I don’t know exactly what he would decide from the Supreme Court even though if I look at his previous opinions from the bench and the Minnesota Law Review article give me pause to be concerned both about the protections of the 14th Amendment as well as the Constitutional separation of powers. The later is especially concerning in light of his remarks in the Minnesota Law Review review article that:

“Congress might consider a law exempting a President—while in office—from criminal prosecution and investigation, including from questioning by criminal prosecutors or defense counsel. Criminal investigations targeted at or revolving around a President are inevitably politicized by both their supporters and critics. As I have written before, “no Attorney General or special counsel will have the necessary credibility to avoid the inevitable charges that he is politically motivated—whether in favor of the President or against him, depending on the individual leading the investigation and its results.” The indictment and trial of a sitting President, moreover, would cripple the federal government, rendering it unable to function with credibility in either the international or domestic arenas. Such an outcome would ill serve the public interest, especially in times of financial or national security crisis.”

He said this despite having served on the staff of Special Prosecutor Kenneth Starr during the investigation and impeachment of President Clinton and that he noted that the same article quoted above regarding the decision of the Supreme Court in Clinton v. Jones “that presidents are not constitutionally entitled to deferral of civil suits.”

I think this is the most important issue in regard to Kavanaugh’s nomination. Yes I know the concerns many have for so many other vital issues but I think this one is the most concerning and it overshadows every other potential decision that he could be the deciding vote on, for all of those issues because this is the only one that could allow the President to establish an authoritarian regime.

It is so because that the President who nominated him is himself embroiled in multiple civil proceedings as well as potential criminal charges. The latter are dependent on what Special Prosecutor Robert Muller uncovers in his investigation of the President and his campaign’s connection to Russian agents during and after the 2016 election. However, the number of guilty please, convictions, and indictments racked up by Muller are greater in a shorter time than any other special prosecutor, and they include some of the highest ranking and closest advisors to the President during and after the campaign. If the President can circumvent that and have his actions upheld by the Court it would be the end of the Republic and the other issues no matter how important would become moot because for the duration of his term the President would be above the law and it would take a two thirds majority of the Senate to convict him of crimes in an impeachment trial. Even if the Democrats gain a majority in the House and the Senate I cannot see 15 or 16 Republican Senators to join 51 or 52 Democrats voting to impeach.

Based on Judge Kavanaugh’s writings one has to wonder what he would do if moment of national crisis coincided with a civil trial, an indictment of the President, or his impeachment. That is a real concern, especially when the President talks about removing First Amendment protects from the press and frequently refers to his political opponents enemies of the people and proclaims that he is above the law. Would not the opinion of a Supreme Court Justice who has written that the President should at enjoy temporary exemption from civil suits or criminal prosecution while he is in office not endanger the Constitution and the Separation of Powers itself. That is certainly something that the Founders never intended, nor the authors of the 14th Amendment who actually ended up impeaching President Andrew Johnson for his dismissal of Secretary of War Edwin Stanton for not disregarding the authority of Congress in the matter of Reconstruction. Johnson’s actions were designed for him to use his power as Commander in Chief to ensure that the military did not comply with the laws of Congress.

The fact that the President has nominated a man who believes that a President should be above the law during his term in office is extremely troubling. If confirmed Kavanaugh may be the man who uses his position to end the Republic as we knew it by elevating the Executive to a level never intended by the Founders by judicial fiat. Senator Edward Kennedy rightly noted:

“The Supreme Court must serve as an independent check on abuses by the executive branch and the protector of our liberties, not a cheerleader for an imperial presidency.”

I am afraid that the elevation of Judge Kavanaugh to the Supreme Court along with Neil Gorsuch, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts could well become that cheerleader for an imperial presidency that knows no restraint and disrespects justice. President Trump advocates on a daily basis for an authoritarian presidency that does not respect the law, the Constitution, or the civil rights of most Americans.

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Zum Wohl!

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